Martineza v. Towne Estates Condominium Owners Association Inc. et al

Filing 190

MEMORANDUM ORDER Denying 182 MOTION for Sanctions. Signed by Judge Richard G. Andrews on 5/27/2014. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

LISA ANN MARTINEZA,
Plaintiff,
v.
Civil Action No. 1:12-cv-779-RGA

TOWNE ESTATES CONDOMINIUM
OWNERS ASSOCIATION, INC., et al.,
Defendants.

TERRANCE BOWMAN and JANELLE N.
STEVENSON,
Third-Party Plaintiffs,

v.
PETTINARO CONSTRUCTION CO., et al.
Third-Party Defendants.
MEMORANDUM ORDER

The Court now takes up Plaintiff's Motion for Sanctions Based Upon The Evidence Of
Defendant, Terrance Bowman's Spoliation Of Evidence. (D.I. 182). The issue is fully briefed.
(D.I. 183, 184, 187). In the Court's opinion, the motion is meritless.
1.

Plaintiff argues that Defendant Bowman "recklessly instructed non-party, Jason

Cox, to replace the subject guard rail without instruction to preserve the same even though
litigation was already underway. In failing to preserve the defective guard rail, Defendant
Bowman has forever deprived Plaintiff with the opportunity to re-examine relevant evidence and
present the subject unsafe railing to the jury." (D.I. 183 at 4). The Plaintiff requests that the
Court sanction the Defendants Mr. and Ms. Bowman. Id

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The Defendants make four

arguments: 1) the contractor that replaced the railing unilaterally decided to destroy the old
railing, 2) Plaintiff's experts suggested at their depositions that they saw no value in reinspecting the railing, 3) Plaintiff's requested relief is counter to all other evidence in the case,
and 4) the Plaintiff may still inspect the screw holes that are located in the walls that the railing
was attached to. (D.I. 184 at 3).
2.

"A party who has reason to anticipate litigation has an affirmative duty to preserve

evidence which might be relevant to the issues in the lawsuit." In re Wechsler, 121 F. Supp. 2d
404, 415 (D. Del. 2000). If a party breaches this duty, by either destroying evidence or allowing
evidence to be destroyed, it may be sanctioned by the Court. Id. If the destruction is in bad
faith, the Court may impose the most severe of sanctions, dismissal of the claim. Id. The Court
looks to three factors when determining whether to impose a sanction for the spoliation of
evidence:
1) the degree of fault of the party who altered or destroyed the evidence;
2) the degree of prejudice suffered by the opposing party; and
3) whether there is a lesser sanction that will avoid substantial unfairness to
the opposing party and, where the offending party is seriously at fault, will
serve to deter such conduct by others in the future.

Schmidv. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994). Despite these factors,
there can be no unfavorable inference if the evidence is "lost or accidentally destroyed, or where
the failure to produce it is otherwise properly accounted for." Brewer v. Quaker State Oil Ref

Corp., 72 F.3d 326, 334 (3d Cir. 1995).
3.

Here, the Court considers five main issues. First, the Plaintiff's experts were

allowed to examine the railing and in fact did examine the railing. (D.I. 184-2 at 2-48). This
examination was sufficient for the Plaintiff's experts to write a forty-six page expert report (page
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count inclusive of pictures). Id. Second, the Plaintiff's expert indicated that no further analysis
of the railing was needed. (DJ. 184-3 at 22 ("[I]t was determined by the review of the
photographs there was sufficient information for me to render opinions that I did - - given the
review of the materials, the discussion with Rich Toland, who did attend the inspection, and the
photographs, so I felt that I had sufficient information to render the opinions that I did.") Third,
it was Plaintiff's own expert that recommended the replacement of the railing. Id

Fourth, the

disposal of the railing by the third-party contractor was a result of either confusion or
miscommunication as Mr. Cox, the third-party contractor, testified at his deposition that he was
asked to "remove the existing [railing] and put a new [railing] in" but not given instructions
regardingwhattodowith the old railing. (DJ. 183 at5 (citingD.I. 183-11 at4)). Fifth, both
Mr. Bowman and his attorneys attempted to recover the railing upon discovering that the railing
had been disposed of. (DJ 184 at 4). The Court finds, based upon the aforementioned facts,
that the destruction of the railing does not warrant any form of sanctions as it was not in bad faith
and the Defendants' failure to produce the railing is accounted for.
4.

The Plaintiff argues that it is not relevant whether the Bowman Defendants

destroyed the railing in bad faith as the Bowman Defendants were under a duty to preserve the
railing. (DJ. 187 at 2). The Court disagrees. The Court may not impose sanctions if there is
not a showing of bad faith. See Brewer, 72 F.3d at 334. However, even if this were not true,
the Plaintiff has failed to demonstrate any prejudice, as required by Schmid.

13 F.3d at 79. The

Plaintiff's experts had ample time to examine the railing and in fact did examine the railing.
Furthermore, the Plaintiff's experts took pictures of the railing, which may be used in court as a
substitute for presenting the railing itself. Finally, while the Plaintiff claims that she has been

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deprived of an opportunity to reexamine the railing, the Plaintiff has not cited to any statement
made by her experts that indicates that reexamination would serve any useful purpose. 1
5.

For the aforementioned reasons the Court DENIES the Plaintiffs Motion for

Sanctions. (D.I. 182).

~

IT IS SO ORDERED this m y of May 2014.

See D.I. 182, ~ 18 (arguing without any support that the injury is deprivation "of the opportunity to re-examine the
guardrail").
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